People v. McCloud

• Decision Date: 26 March 2021
• Docket Number: A158898
• Citation: 277 Cal.Rptr.3d 311,63 Cal.App.5th 1
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Byron MCCLOUD, Defendant and Appellant.

63 Cal.App.5th 1

277 Cal.Rptr.3d 311

The PEOPLE, Plaintiff and Respondent,

v.Byron MCCLOUD, Defendant and Appellant.

A158898

Court of Appeal, First District, Division 2, California.

Filed March 26, 2021

Christopher Lionel Haberman, Visalia, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano and Christen Somerville, Deputy Attorneys General, for Plaintiff and Respondent.

Miller, J. Byron McCloud appeals from an order denying his petition for conditional release under Welfare and Institutions Code section 6608 of the Sexually Violent Predator Act.¹ McCloud contends the trial court erred in determining his petition was frivolous and denying the petition without a hearing. He also argues he was entitled to appointment of counsel and an expert before the trial court could decide whether his petition warranted a hearing.

We conclude the trial court did not err in denying the petition, and we are not persuaded that court-appointed counsel and a court-appointed expert were required in this case either by statute or as a matter of due process. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

McCloud's History of Convictions of Sex Crimes and SVP Status

McCloud has been convicted of 17 sexually violent crimes against six different victims. The offenses against the first five victims were committed in 1979, with McCloud breaking into the victims’ homes and sexually assaulting them. The first victim was a 10-year-old girl. McCloud was convicted of these crimes and sent to prison. He was paroled in March 1991, and seven months later, when he was 37 years old, McCloud broke into the home of a 69-year-old woman and sexually assaulted her. ( People v. McCloud (2013) 213 Cal.App.4th 1076, 1080, 153 Cal.Rptr.3d 10 ( McCloud I ).)

In July 2011, a jury determined McCloud was a sexually violent predator (SVP), and he was committed to the custody of the Department of State Hospitals (DSH).² ( McCloud I , supra , 213 Cal.App.4th at p. 1078, 153 Cal.Rptr.3d 10.) McCloud has been continuously incarcerated or institutionalized since 1991.

Previous Petition for Conditional Release

In 2015, McCloud petitioned for conditional release without the concurrence of the DSH. The trial court (Hon. E. Bradley Nelson) appointed counsel and appointed an independent evaluator to examine McCloud. Five witnesses—including four experts—testified at an evidentiary hearing, which was conducted over multiple days. On January 8, 2018, at the conclusion of the hearing, Judge Nelson denied the petition, finding McCloud failed to prove he was no longer an SVP or that he was suitable for conditional release. ( People v. McCloud (No. A153615, July 19, 2019), 2019 WL 3244079 [nonpub. opn.].)

Current Petition for Conditional Release

On August 8, 2019, McCloud, representing himself, filed another petition for conditional release without the concurrence of the DSH. The typewritten petition included eight attached exhibits.

The first exhibit consisted of five non-consecutive pages from his DSH–Coalinga Annual Evaluation dated June 14, 2019 (2019 Annual Report), a report which was itself 38-pages long.³ It showed McCloud had a current diagnosis under DSM-5 of "Other Specified Paraphilic Disorder, Nonconsenting Females," among other things. The evaluation, prepared by consulting psychologist Rebecca Martin, concluded that McCloud's mental condition had not changed in the previous year; that as a result of his diagnosed mental disorders, McCloud remained a danger to the health and safety of others in that he was likely to engage in future sexually violent criminal behavior if not detained and treated in a custodial environment; and that he was not a suitable candidate for either unconditional release or release to a less restrictive community setting. The excerpt included information that McCloud had discontinued his participation in the sexual offense treatment program (SOTP) in July 2013. The report noted that McCloud was asked to participate in an interview for this evaluation, but declined, and that he did not participate in an interview during a "previous update" in 2018. The consulting psychologist's evaluation was thus completed "based on a review of the records and consultation with DSH-C staff familiar with the patient."

McCloud alleged the 2019 Annual Report was based on stale reports and information. He alleged the annual examinations (under § 6604.9 ) were "void" from 2015 through 2019 "absent ... promulgated standardized assessment protocol."⁴ McCloud, who was born in 1954, noted that "various studies have concluded that recidivism rates decrease significantly among older male sex offenders." He alleged his diagnosis of "nonconsent" (as a type of paraphilic disorder) was " ‘force-fitting’ a diagnosis [which] violates ethical standards."⁵ McCloud also alleged the 2019 Annual Report "relied upon antisocial personality

."

McCloud alleged he "voluntarily entered num[e]rous treatment programs," citing the excerpt of the 2019 Annual Report.⁶ He alleged the report "does not inform court that SOTP changed repeatedly." He stated he was willing to participate in transitional treatment, citing an exhibit that appears to be a letter approving him for a residential program for substance abuse. This letter, from Transitional and Recovery Housing for Veterans dated June 20, 2019, indicates McCloud was approved by a VA liaison to enter Dignity's Alcove Inc., a six-month drug and alcohol and 18-month transitional housing program that required participation in weekly groups such as anger management, relapse prevention, AA/NA and money management. Notably, the letter did not mention treatment for sex offenders or otherwise indicate that program could benefit SVP's or protect the public from SVP's.

The petition concluded, "Thus McCloud qualify [sic ] for conditional release because the petition was not based upon frivolous ground, willingness to attend treatment in a less restrictive environment [sic ]. [¶] McCloud also request[s] court appoint conflict free coun[se]l and an expert with show cause."

District Attorney Response

The Solano County District Attorney filed a response to the petition arguing the petition was frivolous and should be denied without a hearing. Attached as an exhibit to the response was the complete 38-page 2019 Annual Report with a cover letter from the Director of the DSH addressed to the Solano County Superior Court, in which the Director stated he agreed with consulting psychologist Martin's findings and recommendations.

Trial Court Order Denying McCloud's Petition

On October 11, 2019, the trial court (Hon. E. Bradley Nelson) denied the petition without a hearing. In his written order, Judge Nelson noted that he previously denied McCloud's earlier petition following an evidentiary hearing that included four expert witnesses. The court explained: "Petitioner has now filed a new petition for conditional release, also without the concurrence of the DSH. However, unlike his prior petition, this one is not supported by a medical evaluation nor by any facts upon which a court could find that petitioner's condition has so changed that a hearing is warranted. Indeed, petitioner attaches as Exhibit A to his new petition the most recent [ section] 6604.9 annual evaluation by the Department of State Hospitals-Coalinga regarding his commitment. In this evaluation, dated June 14, 2019, DSH's consulting psychologist specifically states that Petitioner's mental condition ‘HAS NOT’ changed, that he still meets the statutory definition of a sexually violent predator, and that he is not suitable for either unconditional or conditional release (emphasis not added).

"Consequently, the current petition is denied because it is frivolous, i.e. totally and completely without merit and, because it does not contain any facts upon which a court could find that petitioner's condition has so changed that a hearing is warranted." (Bolding and fn. deleted.)

DISCUSSION

A. The Trial Court Did Not Err in Denying McCloud's Petition

1. Applicable Law and Standard of Review

A person who has been committed as an SVP has a right under section 6608, subdivision (a), to petition the court for conditional release with or without the recommendation or concurrence of the Director of the DSH. When a person petitions for conditional release without the concurrence of the DSH (as McCloud did in this case), the trial court is required to "endeavor whenever possible to review the petition and determine if it is based upon frivolous grounds and, if so, ... deny the petition without a hearing ." ( § 6608, subd. (a), italics added.)⁷

Thus, section 6608 provides a two-step process when a committed person files a petition for conditional release without DSH concurrence. "First, the trial court makes a threshold determination as to whether the petition for conditional release is based upon frivolous grounds." ( Olsen , supra , 229 Cal.App.4th at p. 996, 177 Cal.Rptr.3d 791.) Our high court has described this first step as "an apparent attempt to deter multiple unsubstantiated requests and to reduce the administrative burden that might otherwise occur." ( Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1148, fn. 14, 81 Cal.Rptr.2d 492, 969 P.2d 584.)

In the second step, the trial court conducts an evidentiary hearing "to determine whether the person committed would be a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior due to his or her diagnosed mental disorder if under supervision and treatment in the community." ( § 6608, subd. (g).)⁸ At the hearing, the petitioner has "the burden of proof by a preponderance of the evidence, unless the report required by Section 6604.9 [the DSH annual report] determines that conditional release to a less restrictive...